the mob, might have lawfully resisted, but instead of doing so left the property on account of fear of the mob.116

§ 557.

$558.

§ 559.

§ 555. In general.

CHAPTER XVI.

CLAIMS AGAINST GOVERNMENTS.

§ 556. Spanish war claims commission.

Citizen must seek redress through his government.
Foreigners excluded from suing.

Suits by one state against another.

$555. In general.-Claims against governments sometimes arise under the provisions of treaties, but usually are based upon

the general principles of international law. We shall not ex amine in detail the many cases in which claims have been presented either against the government of the United States or by the United States in behalf of its own citizens against other governments, but shall state some of the more general rules applicable to claims against governments.1 The treaty concluded between the United States and Spain on December 10, 1898, provided: "The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either government, or of its citizens or subjects, against the other government, that have arisen since the beginning of the late insurrection in Cuba, and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article."2

§ 556. Spanish war claims commission.-In 1901, pursuant to this provision of the treaty, Congress passed an act authorizing the President to appoint five suitable persons, learned in the law, to constitute a commission, "whose duty it shall be, and it shall have jurisdiction, to receive, examine and adjudicate all claims of citizens of the United States against Spain, which the United States agreed to adjudicate and settle" by the treaty. The commission "shall adjudicate said claims according to the merits of the several cases, the principles of equity, and of international law." The commission was empowered to make all necessary or convenient rules for the transaction of business, the rules and mode of procedure to conform, so far as practicable, to the mode of procedure and practice of the circuit courts of the United States. The award made in favor of any claimant, it was provided, should be only for the amount of the actual and direct damage which the claimant should prove that he had sustained. No award was to be made for remote or prospective damages, nor was interest to be allowed on any claim. All awards were to be final, unless a new trial or hearing should be granted. The commission, when in doubt, it was provided, as to

The numerous cases of this character that have arisen may be found in Moore's International Arbitra

tions and Moore's International Law Digest.

230 U. S. Stats. at Large, 1757.

any question of law arising upon the facts before them, might state the facts and the question of law so arising, and certify the same to the supreme court of the United States for its decision.3

§ 557. Citizen must seek redress through his governmen'.If a citizen of one country is injured by another, redress for such act must be sought through his own government. "One nation treats with the citizens of another,' says Mr. Chief Justice Waite, "only through their government. A sovereign cannot be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty, except in performance of his obligations, by treaty or otherwise, voluntarily assumed. Hence, a citizen of one nation wronged by the conduct of another nation must seek redress through his own government. His sovereign must assume the responsibility of presenting his claim, or it need not be considered. If this responsibility is assumed, the claim may be prosecuted as one nation proceeds against another, not by suit in the courts. as of right, but by diplomacy, or, if need be, by war. It rests with the sovereign against whom the demand is made to determine for himself what he will do in respect to it. He may pay or reject it; he may submit to arbitration, open his own courts to suit, or consent to be tried in the courts of another nation. All depends upon himself." 4

§ 558. Foreigners excluded from suing.-The supreme court of the United States decided that subjects of other powers, who gave aid and comfort to the enemy during the war of the Rebellion were excluded from suing for such proceeds under the aban doned and captured property act. "It may be that foreigners," said the court, "who have given aid and comfort to the enemies of the United States are in equity as much entitled to the privileges of the act as the pardoned enemies themselves; but that is for Congress to determine, and not for us. We have decided that the pardon closes the eyes of the courts to the offending acts. or, perhaps more properly, furnishes conclusive evidence that they

4

331 U. S. Stats. at Large, 879.

United States v. Dickelman, 92 U. S. 520, 23 L. ed. 742.

never existed as against the government. It is with the legisla tive department of the government, not the judicial, to say whether the same rule shall be applied in cases where there can be no pardon by the President. A pardon of an offense removes the offending act out of sight; but if there is no offense in the eye of the law, there can be no pardon. Consequently, the acts which are not extinguished by a pardon remain to confront the actor.

§ 559. Suits by one state against another.-A state cannot permit the use of its name in a suit for the benefit of one of its own citizens against another state, as it cannot be deemed to be an independent nation possessing the right of making an imperative demand upon another independent state for the payments of debts due to citizens of the former; nor can it create a controversy by assuming the prosecution of such debts. The circuit court of the United States has no jurisdiction to entertain a suit by aliens, the object of which is to enjoin the attorney general and the attorneys of the several countries of a state from bringing suit in the name of the state for the purpose of enforc ing the collection of taxes, for whose payment coupons of the bonds of such state had been tendered. Such a suit is, in law and in effect, a suit by the subjects of a foreign state against a state of the Union, and comes within the prohibition of the eleventh amendment to the Constitution. There exists no remedy against the state for a breach of its contract, and the attempt indirectly by injunction to compel the specific performance of the contract, by forbidding the performance of those acts which constitute the breaches of the contract, is in effect, even though not in form, a suit against the state. While a suit

Young v. United States, 97 U.

S. 68, 24 L. ed. 992.

• New Hampshire v. Louisiana, 108 U. S. 90, 2 Sup. Ct. Rep. 183, 27 L. ed. 661. In suits against officers of a state, jurisdiction has been denied where the suits were in effect against the state. Cunningham v. Macon etc. R. R. Co., 109 U. S. 450, 3 Sup. Ct. Rep. 295, 27 L. ed. 993; Ex parte Ayers, 123 U. S. 489, Treaties-35

7

8 Sup. Ct. Rep. 164, 31 L. ed. 216; Pennoyer v. McConnaughy, 140 U. S. 12, 11 Sup. Ct. Rep. 702, 35 L. ed. 366. Where the state is the real party, a removal has been refused. Ferguson v. Ross, 38 Fed. 163, 3 L. R. A. 324; State v. Columbus etc. R. Co., 48 Fed. 628.

Ex parte Ayers, 123 U. S. 489, 8 Sup. Ct. Rep. 164, 31 L. ed. 216.